A U.S.-educated engineer [who] had a government job in Qatar’s ministry of electricity and water when he was tipped off in 1996 that the Americans were closing in. In the nick of time, he fled to Afghanistan. That’s where Osama bin Laden, having recently worn out his welcome in Sudan, was just setting up shop.

The rest, as they say, is history. Years later, while confirming his status as an enemy combatant, KSM recounted how he’d become al-Qaeda’s "military operational commander" for all foreign operations, running the 9/11 attacks "from A to Z."

So: We are now going to have a trial that never had to happen for defendants who have no defense. And when defendants have no defense for their own actions, there is only one thing for their lawyers to do: put the government on trial in hopes of getting the jury (and the media) spun up over government errors, abuses and incompetence. That is what is going to happen in the trial of KSM et al. It will be a soapbox for al-Qaeda's case against America. Since that will be their "defense," the defendants will demand every bit of information they can get about interrogations, renditions, secret prisons, undercover operations targeting Muslims and mosques, etc., and -- depending on what judge catches the case -- they are likely to be given a lot of it. The administration will be able to claim that the judge, not the administration, is responsible for the exposure of our defense secrets. And the circus will be played out for all to see -- in the middle of the war. It will provide endless fodder for the transnational Left to press its case that actions taken in America's defense are violations of international law that must be addressed by foreign courts. And the intelligence bounty will make our enemies more efficient at killing us.

Yet, even should these practical problems (somehow) never arise -- and reasonable Democrat lawyer/author Stuart Taylor seems confident they won't -- many lefties start from fundamental assumptions that are both legally erroneous and contradicted by the Obama Administration itself.

Indeed, civilian justice and military justice differ in ways even as fundamental as the purposes that the two systems of justice serve. [O]ne of the purposes of military law, unlike civilian law, is "to assist in maintaining good order and discipline in the armed forces, to promote efficiency and effectiveness in the military establishment, and thereby to strengthen the national security of the United States."

Pirates are common enemies, and they are attacked with impunity by all, because they are without the pale of the law. They are scorners of the law of nations; hence they find no protection in that law.

The 9/11 attacks were both an act of war and a violation of our federal criminal law, and they could have been prosecuted in either federal courts or military commissions. Courts and commissions are both essential tools in our fight against terrorism.

I have never disputed the constitutional authority of the President to convene Article III courts in cases of international terrorism. However, I remain very concerned about the wisdom of doing so. Those who have committed acts of international terrorism are enemy combatants, just as certainly as the Japanese pilots who killed thousands of Americans at Pearl Harbor. It will be disruptive, costly, and potentially counterproductive to try them as criminals in our civilian courts.

The precedent set by this decision deserves careful scrutiny as we consider proper venues for trying those now held at Guantanamo who were apprehended outside of this country for acts that occurred outside of the country. And we must be especially careful with any decisions to bring onto American soil any of those prisoners who remain a threat to our country but whose cases have been adjudged as inappropriate for trial at all. They do not belong in our country, they do not belong in our courts, and they do not belong in our prisons.

I have consistently argued that military commissions, with the additional procedural rules added by Congress and enacted by President Obama, are the most appropriate venue for trying individuals adjudged to be enemy combatants.

[W]e can do a little reverse engineering to figure out how the enumerated factors are apparently applied by the Obama administration. If the attack occurred in the United States, it weighs in favor of criminal prosecution. If the attack focused on American civilians, it weighs in favor of criminal prosecution. (It is less clear to me how the other factors are weighed and applied in practice.) Application of these factors can convert heinous acts of war and war crimes into criminal offenses with respect to which the perpetrators are subject to the protections of the Constitution of the United States.

That way madness lies. The Obama administration is engaged in a venture that will simultaneously undermine the prosecution of the war in which we are engaged while it blurs the distinction between war and crime.

What a perverse moral calculus. Which is the war crime -- an attack on defenseless civilians or an attack on a military target such as a warship, an accepted act of war that the United States itself has engaged in countless times?

By what possible moral reasoning, then, does KSM, who perpetrates the obvious and egregious war crime, receive the special protections and constitutional niceties of a civilian courtroom, while he who attacked a warship is relegated to a military tribunal?

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There is also one Senator B. Obama from Illinois on the congressional record in 2006, saying that the military tribunal process will be fair and appropriate for KSH. As quoted on Rush Limbaugh show -- I cannot find the quote.

The usual reposte to this deals with a 1958(?) commentary/treaty/whatever -- it's "official" -- on this from somewhere in Europe (Belgium? The Hague?) that pretty much denies this (or any reasonable) interpretation of unlawful combatants. It claims (IIRC) that someone must be covered either by civilian law or by the Geneva Conventions, even if one is in clear violation of every aspect of them.